Temporary Employment Program in Jeopardy After OPT Extension for STEM Students Held Invalid

Neemah A. Esmaeilpour

Temporary Employment Program in Jeopardy After OPT Extension for STEM Students Held Invalid

On August 12, 2015, a federal court found that extended Optional Practical Training (OPT) available to certain STEM students was invalid. The Department of Homeland Security (DHS) was given six months to fix the problem. Otherwise, the program will be cancelled in February 2016.

OPT is temporary employment for undergraduate and graduate students with a F-1 visa. OPT allows students to obtain practical experience in his or her field of study, typically for 12 months following graduation. In 2008, DHS issued a rule allowing certain F-1 students in the STEM fields (science, technology, engineering, and math) to extend OPT for an additional 17 months (for a total of 29 months of OPT). Approximately 150,000 full-time, foreign graduate students were enrolled in science, engineering, and health fields when the rule went into effect. However, a U.S. District Court has now found that this rule was not valid because DHS did not seek public comment before implementing the extension. The court rejected DHS’s argument that it had good cause to implement the regulation as an emergency rule because thousands of highly skilled individuals would have been forced to leave the United States.

Fortunately for F-1 holders and their employers, the court did not strike down the rule immediately and is giving DHS additional time to seek public comment and issue a new regulation. But the future of the program is still a concern. At this time, it appears USCIS is continuing to accept OPT extension applications. However, its failure to timely implement new regulations will likely terminate the program. How this would affect those who currently have a STEM OPT extension remains uncertain.